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Barbri > Consumer Law > Flashcards

Consumer Law Flashcards

1
Q

a waiver is void unless…

A
  • in writing
  • signed
  • consumer not in disparate bargaining position and represented by an attorney
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2
Q

proper party plaintiff for DTPA claim

A

consumer: individual, partnership, corporation who seeks or acquires by purchase or lease, any good or services

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3
Q

consumer

A

entity who seeks or acquires by purchase or lease goods or services

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4
Q

application of DTPA

A

liberally construed to protect consumers and generally may not be waived

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5
Q

seek

A

any purchaser or anyone with good faith intention to purchase is consumer… no requirement that a transaction be consummated

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6
Q

acquire

A

any purchaser acquires as does any intended ben

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7
Q

intended v. incidental bens

A
  • incidental does NOT acquire
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8
Q

purchase or lease

A

to be a consumer under DTPA entity must do more than merely seek or acquire goods or services… they must be sought or acquired by purchase or lease

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9
Q

truly free services

A

NOT subject to DTPA

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10
Q

goods

A

includes real estate BUT excludes money or intangibles

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11
Q

services

A

includes services BUT excludes pure loans

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12
Q

loans in DTPA

A

merely lending money is NOT subject to DTPA BUT if from the consumer’s perspective the loan is an essential part of the transaction, it is subject to the act

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13
Q

business consumer exemption

A

assets of $25m or +, or one that is owned or controlled by a corp with assets of $25m or + is NOT a consumer for purposes of the DTPA
- a ∆ has the burden to prove the business consumer exception as an affirmative defense

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14
Q

professional services exemption

A

nothing in DTPA shall apply to a claim for damages based on the rendering of professional service, the essence of which is the providing of advice, judgment, or opinion

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15
Q

exceptions to the professional services exemption

A
  1. express misrepresentation of a material fact that cannot be characterized as advice or opinion
  2. failure to disclose information
  3. unconscionable action or course of action
  4. breach of express warranty
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16
Q

personal injury claims

A

all damages arising out of PI claims are recoverable under 17.50h for a violation of a tie-in statute as actual damages

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17
Q

large transactions - written Ks

A

DTPA does NOT apply to claim arising out of a written and signed K if the K relates to a transaction involving consideration by the consumer of more than $100k and consumer is represented by attorney

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18
Q

transactions over $500k

A

does not require written K, just needs to be over $500k and DTPA will not apply

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19
Q

in connection with requirement (remote parties)

A

remote parties are ∆s that are not immediate parties (most cases this is the manufacturer)

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20
Q

claims under DTPA

A
  1. use or employment by any person of a false, misleading, or deceptive act that is on the laundry list AND relied on by the consumer to the consumer’s detriment
  2. breach of an express or implied warranty
  3. unconscionable action by any person OR
  4. use or employment by any person of an act in violation of Chapter 541 Insurance Code
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21
Q

cumulative claims under DTPA

A

may have multiple claims but only a single recovery of damages

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22
Q

to have a claim under DTPA laundry list you need…

A
  • reliance required
  • prohibited practice
  • no privity/knowledge/intent
  • general misrepresentation (actionable unless mere puffing or opinion)
  • parol evidence rule inapplicable
23
Q

failure to disclose elements

A
  1. ∆ knew information regarding goods or services
  2. information was not disclosed
  3. intent to induce the consumer to enter into the transaction AND
  4. consumer would not have entered into transaction had the information been disclosed
24
Q

unconscionability under DTPA

A
  • act which to a consumer’s detriment takes advantage of the lack of knowledge of the consumer (no need to show culpable mental state if ∆ takes advantage of consumer to unconscionable degree) to a grossly unfair degree
  • separate and cumulative claim determined at time of transaction
25
Q

cumulative remedies under DTPA

A

if there are different acts or practices resulting in different damages, cumulative recovery is permissible
- remedies provided by the DTPA are in addition to any other procedures or remedies provided for in any other law

26
Q

when the ∆ acted knowingly, the TX Insurance Code permits recovery of…

A

treble actual damages

27
Q

actual damages

A

all economic losses, pain and suffering, mental anguish, loss of consortium, disfigurement, physical impairment and loss of companionship and society

28
Q

P has proven the ∆ violated the TX Insurance Code. Under the code the P is entitled to…

A

actual damages, attorneys’ fees and court costs

29
Q

actionable unfair settlement practices under TX Insurance Code

A
  • refusing to pay a claim without reasonable investigation
  • failing to provide promptly a reasonable explanation for the denial of a claim or an offer of a compromise settlement of a claim
  • misrepresenting a material fact or policy provision relating to the coverage at issue to a claimant
30
Q

provisions of the TX Insurance Code apply to…

A

any person engaged in the business of insurance (individual or legal entity)

31
Q

TCDA provides for fee shifting for…

A

both prevailing ∆s (under certain circumstances) and prevailing Ps

32
Q

under TCDA a consumer may sue for

A
  • injunctive relief to prevent or restrain a violation of the TDCA OR
  • actual damages (definition under DTPA)
33
Q

informing a consumer that she may be arrested after proper court proceedings if she has violated a criminal statute is…

A

permitted under TDCA

34
Q

prohibited conduct under the TDCA

A
  • threats or coercion
  • harassment and abuse
  • unfair or unconscionable acts
  • fraudulent, deceptive or misleading represenations
35
Q

the scope of conduct prohibited by the TDCA in connection with collection debt includes…

A

only the conduct listed specifically in the TDCA (exclusive list)

36
Q

TDCA uses the term ______ to describe the type of obligations governed by the act

A

consumer

37
Q

purposes of the TDCA

A
  • regulate 3rd party debt collectors and credit agencies
  • protect consumers from abusive debt collection practices
  • require 3rd party debt collectors post a surety bond prior to collecting debt
38
Q

consumer who prevails on her TDCA claim shall recover her attorneys’ fees…

A

even when there is no showing the ∆ acted knowingly or intentionally

39
Q

under DTPA a prevailing consumer is entitled to

A

economic damages, damages for mental anguish, equitable remedies and attorney fees (reasonable and necessary)

40
Q

when the ∆ acted intentionally, DTPA provides for the recovery of

A

both treble economic damages and treble damages for mental anguish

41
Q

when teh ∆ acted knowingly, DTPA provides for the recovery of

A

treble economic damages only

42
Q

besides economic and mental anguish damages under DTPA a P may recover additional damages

A

only if ∆ acted intentionally or knowingly

43
Q

definition of knowingly under DTPA

A

actual awareness at the time of the act or practice of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim

44
Q

transaction or set of related transactions valued in excess of ____ is exempt from the DTPA

A

$500k

45
Q

businesses that meet or exceed the threshold of ___ in assets, or that are owned by an entity whose value meets or exceeds ___ are exempt from the scope of the DTPA

A

$25m

46
Q

who may a homebuyer sue under DTPA in connection with sale of the house

A
  • seller
  • seller’s real estate agent
  • buyer’s real estate agent
47
Q

claims under the DTPA laundry list require proof of…

A

reliance

48
Q

required elements to prevail on breach of warranty claim under DTPA

A
  1. warranty exists
  2. scope of the warranty
  3. warranty has not been disclaimed or modified
49
Q

diclaimers, modifications or limitations of warranties are all valid and enforceable in a claim under the DTPA if…

A

they are valid and enforceable outside of the DTPA

50
Q

causation standard for the recovering of damages under DTPA…

A

producing cause - substantial factor which brings about the injury and without which the injury would not have occurred

51
Q

DTPA permits the recovery of economic damages such as…

A

costs of repair and replacement

52
Q

by knowingly and voluntarily signing a K containing an “as is” provision the consumer may have…

A

negated the producing cause element of his claim and may not recover any damages

53
Q

when does the DTPA permit recovery for mental anguish damages

A

only when the ∆ acted either knowingly or intentionally

Barbri (21 decks)

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